Article IV court constitutionality put to test

APPELLATE ZEALOTS

South of Japan and north of Australia, the Northern Mariana Islands are an 18-hour plane ride from San Francisco. Lined with tropical white sand beaches, the islands seem worlds away from the Bay Area - and yet appeals are to the 9th U.S. Circuit Court of Appeals.

That odd arrangement is the result of the islands' status as a self-governing commonwealth under United States sovereignty. The U.S. took over administration of the islands after defeating the Japanese forces there in World War II, and the residents voted to forge permanent ties with the United States in 1976. One year later, Congress established the U.S. District Court for the Northern Mariana Islands (NMI) to oversee all criminal cases and many civil matters for the islands.

Most lawyers know about Article I courts. Judges on those tribunals, like bankruptcy and tax courts, generally hold office for only a fixed term rather than life, and lack the salary guarantees of Article III.

Article IV courts are a bit more obscure. (For those without a pocket constitution handy, Article IV's hodgepodge of provisions includes the power for Congress to "make all needful rules" for U.S. territories and "other property.") Judges on the NMI district court serve 10-year terms and can be removed by the president. And that, the 9th Circuit recently held in rejecting a constitutional challenge to the NMI court, is just fine. United States v. Xiaoying Tang Dowai, 2016 DJDAR 10289 (9th Cir. Oct. 17, 2016).

The case involved a Chinese woman, Ms. Tang, who came to the islands to work in the garment factories. (These factories were apparently quite popular until recently, since the islands' territorial status meant clothes could bear the "Made in USA" label, yet most U.S. labor laws and the minimum wage did not apply. Congress recently started phasing up the minimum wage to match the rest of the U.S., with a corresponding decline in NMI garment jobs).

When her garment work ended and she could not find another job, Tang entered into a sham marriage so she could stay in the islands. The authorities caught on after she applied for a green card, and indicted her for conspiracy to defraud the United States, visa fraud and false statements. The jury found her guilty on all charges.

Tang appealed, raising a variety of challenges to her conviction. Most relevant here - the only issue the court thought worth publishing - Tang argued having a judge without life tenure preside over her trial for federal crimes violated her constitutional right to an independent federal judiciary. But the 9th Circuit opinion by Judge Consuelo M. Callahan, joined by Chief Judge Sidney R. Thomas and Judge Mary H. Murguia, upheld the constitutionality of Article IV courts.

Hoping to invoke the significant limits the Supreme Court has imposed on the powers of Article I tribunals, Tang argued that the NMI court should be classified as an Article I treaty court. (These limits are why federal magistrate judges can only make recommendations on critical matters, unless the parties consent - and some cases question whether an Article I tribunal can try suits at common law even with consent.)

The 9th Circuit would have none of Tang's argument. Stressing the "unique political relationship" between NMI and the U.S., the panel held that Congress accepted authority over the NMI under its Article IV powers. And, the 9th Circuit reasoned, the classification may not even matter given a Supreme Court case holding Article I judges in the District of Columbia can try criminal cases even though they lack life tenure.

The 9th Circuit's opinion makes the constitutionality of Article IV courts sound like a foregone conclusion. And perhaps it was - it would cause significant disruption if territorial courts were suddenly deemed unconstitutional. Congress could establish Article III district courts in the territories, as it already has for Puerto Rico, but there would be significant questions about prior decisions handed down by the unconstitutional tribunals.

Still, prior precedents had left room for doubt. The Supreme Court previously held the presence of a single Article IV judge on a three-judge 9th Circuit panel deprived the court of all authority to act on an appeal. Nguyen v. United States, 539 U.S. 69 (2003). That case arose from Guam, a U.S. territory just south of NMI that has a similar Article IV district court. The chief judge of the 9th Circuit appointed the chief judge of the NMI District Court to the appellate panel pursuant to a statute that allows district court judges to sit by designation on the 9th Circuit. Even though the panel also contained two 9th Circuit judges, the Supreme Court voted 5-4 that the presence of a single Article IV judge stripped the appellate court of jurisdiction. This was so even though the defendant had been convicted in an Article IV district court - and the Supreme Court pointedly noted that the constitutionality of that district court proceeding was not before it.

The Nguyen case, of course, proved no help to Ms. Tang. The 9th Circuit rejected her other arguments in a separate unpublished opinion, affirming her conviction. The NMI District Court sentenced her to only probation for three federal felonies, though, so perhaps territorial courts weren't all bad for her.